SIMPLIFYING FEDERAL CIVIL PROCEDURE

Alongside the Federal Rules of Evidence, a working knowledge of the Federal Rules of Civil Procedure is mandatory for anyone who hopes to build a civil-trial practice. While making the rules simple may be a stretch, I propose that one can simplify the civil litigation “road map” and thereby understand how the rules fit together. Consider the process as roughly falling into five phases.

1. Pre-Litigation Planning

There are several strategic considerations that plaintiff’s counsel must deal with before ever filing a suit. Think of these as What? Who? Where? and When? issues.

First, think about what the case is about: is federal subject-matter jurisdiction triggered.

Second, think about who will be named or directly affected by the litigation. This implicates questions of standing, capacity, personal jurisdiction and party issues.

Third, think about where the litigation will be filed. Proper venue and the possibility of a change of venue should be thought through.

Finally, although it is more a matter of substantive than procedural law, one must think about when suit must be filed to avoid a statute of limitations defense.

Hopefully, you can see that there may be multiple “right” answers to litigation-planning questions; therefore, one must think strategically about the ultimate disposition of a case, be it summary judgment or trial. By the way, this phase of the analysis requires an understanding of several provisions in Title 28, U.S. Code in addition to FRCP.

2. The Pleadings Phase

Practitioners must become familiar with the types of pleadings allowed in federal practice (including more exotic variations, e.g. third-party practice). Proper pleading practice lies at the intersection between a thorough pre-suit factual investigation and a strong working knowledge of the elements of causes-of-action or affirmative defenses. Counsel on both sides should anticipate and be prepared to meet motions to dismiss claims or motions to strike affirmative defenses. Additionally, it is entirely conceivable that a case may enter the federal court system at the pleading stage via removal from state court, therefore, familiarity with removal and remand practice is mandatory.

3. The Discovery Phase

From a timeline perspective, the pleadings and discovery phases overlap. Federal practice forces lawyers to develop a discovery plan from the outset and coordinate it in conjunction with opposing counsel. A well-worn path of discovery in many federal cases looks like this: initial case disclosures per FRCP 26(a) (technically not discovery) then interrogatories to flush out factual details about witnesses, causes-of-action, and defenses then requests for production and third-party document subpoenas to gather the “universe” of potential trial exhibits, and then, finally, depositions. Request for admissions are an underused device that can be deployed in a variety of ways, e.g. facilitate the authentication of documents or to clear out “paper” defenses or pleading assertions.

4. Summary Judgment Practice

The reality of federal civil-litigation practice is that a significant percentage of cases are disposed on summary judgement. Think of summary judgement as a screening device to weed out factually unsupported claims or defenses. This is a cautionary aspect of the practice, especially for plaintiff’s lawyers. The lesson: begin with the end in mind and ensure you have the facts to back up the papers before you ever file them.

5. Trial Practice

Think here in terms of pre-and-post-trial-procedures, as well as the trial itself. Both FRCP and local rules guide counsel through a process that is designed to narrow the issues and expedite the trial. Trial procedure is itself a body of law governing jury selection, arguments, trial motions and the like.

Of course, this is an oversimplification, but at least the starting point for a learning discussion. I haven’t mentioned a plethora of other procedural issues, e.g. disposition by mediation or Daubert motions (more of a creature of evidence law). If you found this helpful, I’ve created a study reference, Glance Charts Quick Guide to Federal Civil Procedure that builds on the concepts discussed here. If you are going to call yourself a true civil-trial lawyer, you must not only master the law of evidence, but be thoroughly familiar with the law of procedure as well. Don’t consider it a burden. Rather, consider it a fundamental skill in developing a winning edge.